U.S. v. Kerley

• Decision Date: 25 September 2008
• Docket Number: Docket No. 07-1818-cr.
• Citation: 544 F.3d 172
• Parties: UNITED STATES of America, Appellee, v. Clifford KERLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

544 F.3d 172

UNITED STATES of America, Appellee, v. Clifford KERLEY, Defendant-Appellant.

Docket No. 07-1818-cr.

United States Court of Appeals, Second Circuit.

Argued June 13, 2008.

Decided September 25, 2008.

Colleen P. Cassidy, Federal Defenders of New York, Inc., Appeals Bureau (Barry

D. Leiwant, Attorney-in-Charge), New York, NY, for Defendant-Appellant.

Harry A. Chernoff, Assistant United States Attorney (Katherine Polk Failla, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: JACOBS, Chief Judge, POOLER, Circuit Judge, and RESTANI,^* Judge.

RESTANI, Judge:

This appeal arises from a conviction of two counts of willful failure to pay a child support obligation in violation of 18 U.S.C. § 228(a)(3). A jury found defendant-appellant Clifford Kerley guilty of failing to make support payments for his twin daughters in accordance with a court order. The issues on appeal are whether (1) the district court erroneously precluded his good faith defense, (2) the second count was multiplicitous, and (3) the district court incorrectly applied the United States Sentencing Guidelines ("Guidelines"). Several questions of first impression are presented, including (1) whether violation of a single child support order which covers two children gives rise to one or two violations of 18 U.S.C. § 228; (2) in what circumstances the child victim of a failure to pay child support is a "vulnerable victim" for the purpose of an enhancement under U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 3A1.1(b)(1) (2006); and (3) whether the "loss amount" of a failure to pay child support includes all arrears or only the amount the defendant could have paid out of his income. For the following reasons, we affirm the conviction on the first count, we vacate the conviction on the second count, and we remand for resentencing.

BACKGROUND

In 1988, Kerley and Judith Lopez engaged in an extramarital affair that resulted in the birth of twin girls.¹ The relationship ended before the children were born, and Lopez received public assistance after the children's births. In 1990, the Commissioner of Social Services of the City of New York commenced a proceeding against Kerley, seeking child support payments. Kerley denied paternity and requested a blood test. The New York State Family Court scheduled a blood test for May 2, 1990, and a hearing on the issue of paternity for July 6, 1990, but apparently Kerley did not appear on either day. On July 6, the Family Court entered filiation orders as to the children and a default support order directing Kerley to make monthly child support payments of $737 for both children.

Without making any payments, Kerley moved to Indiana with his wife and their children in 1991. In 1995, after receiving notice that he owed support payments, Kerley filed a pro se motion in New York State Family Court seeking to reopen the matter to vacate the filiation and support orders. He claimed that this was the first time he became aware of the support obligation. In an affidavit, he stated that he arrived late to the July 6 hearing and denied filiation. The Family Court denied the motion.

In 1996, the New York City Office of Child Support Enforcement began garnishing Kerley's wages.² The garnishments ceased in 1997, apparently due to a merger involving the employer, but resumed in 2000. In June 2000, Kerley quit his job and, between then and July 2002, changed jobs several times. The Government contended that he did so to avoid the wage garnishments, but Kerley claimed that a 1999 injury prevented him from carrying out his job functions. By the time of his arrest on July 29, 2002, Kerley owed over $106,000 in arrears. The only support payments made were from wage and tax garnishments.

Kerley waived indictment, and the Government charged him in an information with one count of failure to pay a support obligation. During an innocence proffer, Kerley told the Government that he did not make payments because he did not believe he was the father of the children. Before trial, Kerley moved to dismiss the information, arguing that the support order was jurisdictionally defective. The district court granted the motion, United States v. Kerley, No. 02-cr-1529, 2004 WL 1555119 (S.D.N.Y. July 9, 2004), but we reversed and remanded the matter, United States v. Kerley, 416 F.3d 176, 184 (2d Cir.2005). On remand, the Government filed a superseding indictment charging Kerley with two counts of the offense.

At trial, the disputed issue was whether Kerley's failure to make the support payments was willful.³ The Government argued that Kerley was able to make the payments, but arranged his financial circumstances to avoid the obligation. The Government presented evidence to show that Kerley changed jobs and remained unemployed to avoid the wage garnishments, and that Mrs. Kerley's income provided Kerley with a comfortable lifestyle. Although the parties stipulated that Mrs. Kerley's income could not be used to pay the obligation, the court allowed it to be used as evidence of Kerley's financial circumstances.

Kerley stated that he did not make the payments because he believed that he was in compliance with the support order. He testified that in 1996, an Indiana attorney advised him that the wage garnishments put him in compliance with the order.⁴ He also testified that he thought "something happened" with his 1995 motion when the wage garnishments stopped in 1997. Trial Tr. 258:20 (Aug. 1, 2006).

The jury found Kerley guilty of both counts of the offense. Applying the Guidelines, the district court sentenced Kerley to forty-one months of imprisonment for both counts.⁵ Kerley appeals. We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

Kerley argues that the district court improperly precluded his good faith defense, that the conviction on the second count is based on a multiplicitous indictment, and that the district court incorrectly applied Guidelines enhancements.

A. Good Faith Defense

Kerley argues that he sought to present at trial his good faith belief that he was not the father of the children and therefore thought he did not have to make support payments, but that the district court precluded him from presenting this defense. He contends that the district court erred in refusing to instruct the jury on the good faith defense upon the ground that any good faith had to be objectively reasonable, and further erred in instructing the jury to disregard his theory of the defense. The arguments lack merit.

Preliminarily, we reject the Government's claim that because Kerley negotiated and resolved the objections he initially raised, he waived his challenge to the district court's instruction on willfulness. In "accepting" the court's proposed charge, counsel for Kerley stated, "I would prefer the language in my instructions, but your Honor rules, so I will sit down." Trial Tr. 54:13-15 (July 31, 2006). The objection is preserved.

Similarly, contrary to the Government's contention, it is unclear that Kerley never asserted belief in lack of paternity as the theory for his good faith defense. He claims that he abandoned his good faith argument because of the district court's rulings and jury instructions. The record shows that Kerley intended to present evidence that he did not believe the paternity finding and at one point tried to overturn it. See Trial Tr. 25:24-27:7, 71:10-75:4 (July 31, 2006); Notice of Mot. to Vacate Default Order. For purposes of this disposition, we treat the defense as preserved.

We review challenges to jury instructions de novo. United States v. Bok, 156 F.3d 157, 160 (2d Cir.1998). A conviction will be reversed for refusal to give a requested charge only if the requested instruction is "legally correct, represents a theory of defense with basis in the record that would lead to acquittal, and the theory is not effectively presented elsewhere in the charge." United States v. Doyle, 130 F.3d 523, 540 (2d Cir.1997) (citations and quotations omitted). We review jury instructions as a whole. United States v. Carr, 880 F.2d 1550, 1555 (2d Cir.1989).

Under 18 U.S.C. § 228, "[a]ny person who ... willfully fails to pay a support obligation" is subject to a fine, imprisonment, or both. 18 U.S.C. §§ 228(a)(3), (c)(2). The willfulness standard is borrowed from the tax statutes and is "interpreted in the same manner that the Federal courts have interpreted [the] felony tax provisions." United States v. Mattice, 186 F.3d 219, 225 (2d Cir.1999) (quoting H.R.Rep. No. 102-771, at 6 (1992)). Therefore, "willfulness" under § 228 means a "voluntary, intentional violation of a known legal duty." Id. (quotations omitted); see Cheek v. United States, 498 U.S. 192, 201, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (interpreting willfulness standard in tax statute). A defendant found to have acted willfully may negate willfulness by showing ignorance of the law or that, because of a misunderstanding of the law, he had a good faith belief that he was not violating the legal duty. See Cheek, 498 U.S. at 202, 111 S.Ct. 604. A good faith belief need not be objectively reasonable to negate willfulness. See id.

The district court instructed the jury on willfulness as follows:

The term willfully as it pertains to this element means a voluntary, intentional violation of a known legal duty. In other words, the defendant must have acted voluntarily and intentionally and with the intent to do something the law forbids. That is to say with a purpose either to disobey or disregard the law, not as a result of inadvertence, mistake or some other innocent explanation.... [Y]ou must ... find the defendant possessed the specific intent not to pay the support obligation.

Trial Tr. 422:19-25, 424:10-12 (Aug. 2, 2006). Read as a whole, the instructions captured the essence of a good faith defense. The instructions do not imply...